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The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933

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The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933 Michigan Law Review Volume 78 Issue 8 1980 Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933 David W. Levy University of Oklahoma Bruce Allen Murphy Pennsylvania State University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Judges Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation David W. Levy & Bruce A. Murphy, Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933, 78 MICH. L. REV. 1252 (1980). Available at: https://repository.law.umich.edu/mlr/vol78/iss8/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. PRESERVING THE PROGRESSIVE SPIRIT IN A CONSERVATIVE TIME: THE JOINT REFORM EFFORTS OF JUSTICE BRANDEIS AND PROFESSOR FRANKFURTER, 1916-1933 .David W. Levy* and Bruce Affen Muphy** On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Jus­ tice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extraju­ dicial activities of American justices. Even more important, the ar­ rangement constitutes a noteworthy episode in the history of twentieth-century American liberalism. 1 I For twenty years before his nomination, Brandeis had been a res­ olute and effective champion of social reform. In an era notable for its reformers, Brandeis had earned an impressive reputation among those who worked for change: nemesis of the traction magnates, re­ lentless foe of monopoly, defender of conservation against the depre­ dations of Ballinger and Taft, inventor of low-cost workingmen's insurance, chief prophet of industrial democracy, champion of pro­ gressive legislation in the courts, the "people's attorney" in their struggles against powerful interests. By 1916, Mr. Wilson's choice * Associate Professor, Department of History, University of Oklahoma. B.A. 1959, Uni­ versity of Illinois; M.A. 1961, University of Chicago; Ph.D. 1967, University of Wisconsin. - Ed. ** Assistant Professor, Department of Political Science, Pennsylvania State University. B.A. 1973, University of Massachusetts-Amherst; Ph.D. 1978, University of Virginia. - Ed. 1. Many of the letters cited in this article have been reprinted in 1-V LETTERS OF Louis D. BRANDEIS (M. Urofsky and D. Levy eds. 1971-1978) [hereinafter cited as LETTERS), In this article, each citation to such a letter includes a reference to the location within that collection of the reprinted letter; the collection provides a reference to the location of the original letter. Unless otherwise indicated, all letters cited in this article were authored by Louis D. Bran­ deis [hereinafter L.D.B.J. 1252 . August 1980] Brandeis and Franifurter 1253 for the High Court had become the very symbol of social activism.2 Opponents seized upon that activist reputation in their effort to prevent confirmation. Brandeis, they charged, lacked the judicial temperament; he had none of that cool and level-headed judgment which should characterize a nonpartisan dispenser of justice. Sena­ tor John D. Works, who voted against confirmation, summed up the contention: "He is of the material that makes good advocates, re­ formers, and crusaders, but not good or safe judges."3 Even Bran­ deis's supporters tended to agree with the charge. "He is a radical and has spent a large part, not only of his public, but of his profes­ sional career, in attacking established institutions . .," admitted one friend. "Undoubtedly he is a merciless antagonist, fighting his cases up to the limit ...." 4 Another supporter tried to convince the Senators that "[a] man can not be combative as he is, or aggressive as he is, fighting as he has been on the firing line during all his profes­ sional career, without making many enemies."5 Brandeis recognized that becoming a judge would ordinarily re­ quire leaving partisan interests and attitudes behind. In the sancti­ fied tradition of the law - which Brandeis revered as much as anyone6 - a judge was characterized by impartiality, by distance from the battle, by living a life aloof from the fray. Amos Pinchot, Brandeis's trusted comrade-in-arms in several progressive crusades, saw the problem as clearly as Brandeis. On the day after Chief Jus­ tice White administered the oath to Brandeis, Pinchot confessed that "although I have done what I could in the fight for your confirma­ tion and earnestly desired it - still, now that you are actually a Supreme Court Justice, I don't know whether to be sorry or glad. So far, I think that I am sort of sorry." Perhaps the new Justice might "escape the common fate of judges," but Pinchot was far from opti­ mistic: Taking it all together, I don't think it is unfair to say that, for the last ten years, you have been the most vital and disturbing element in our public life . You have made more trouble for injustice than any other man. The passing of your work, both light cavalry and heavy artillery, the knowledge that no longer, when a cause needs a great 2. See A. LIEF, BRANDEIS: THE PERSONAL HISTORY OF AN AMERICAN IDEAL (1936); A. MASON, BRANDEIS: A FREE MAN'S LIFE (1946); M. UROFSKY, A MIND OF ONE PIECE (1971). See generally, A. GAL, BRANDEIS OF BOSTON 1-65, 96-136 (1980). 3. II Nomination of Louis D. Brandeis: Hearings Before the Subcommillee of the Senate Commillee on the Judiciary, 64th Cong., 1st Sess. 371 (1916). 4. I id at 620 Qetter written by Arthur D. Hill). 5. Id at 770 (statement of Asa P. French). 6. See M. UROFSKY, supra note 2, at 15-42; Levy, 17ze Lawyer as Judge: Brandeis' View of the Legal Profession, 22 OKLA. L. Rev. 374 (1969). 1254 Michigan Law Review [Vol. 78:1252 militant advocate, you will step forward as you have heretofore to fight the exploiters and debauchers of America's men, women and children, makes me feel pretty sad. As long as you were in private life, it. seemed to me that, if any monstrous injustice should be attempted upon help­ less people, they would not lack protection. You furnished to me per­ sonally, and to many people who are making the rather lonely fight against privilege, a kind of confidence that we will sorely miss.7 When the San Francisco reformer, Rudolph Spreckels, sounded the same note as Pinchot, Brandeis replied: "I have felt strongly what your telegram also indicates, - how much one must relinquish in order to avail of new opportunity."8 Brandeis received his first taste of standing aloof from the fray during the confirmation hearings. On the day of the nomination he told reporters, "I have nothing whatever to say; I have not said any­ thing and will not."9 A few days later he asked Henry Brougham of the Philadelphia Public Ledger to refrain from rewriting and publish­ ing his testimony before a Congressional committee because "it would amount practically to an interview, and I am avoiding inter­ views of all kinds at present." 10 At the start of the long confirmation ordeal, administration strategists decided that the nominee should neither testify, nor publicly answer any of the charges against him. So Brandeis reluctantly returned to Boston and tried to content him­ self by digging information out of his files and channeling it to those managing his side of the hearing in Washington. "I am leaving the fight to others," he wrote his brother two weeks into the proceedings. "Now my feeling is rather - 'Go it husband, Go it bear' with myself as 'interested spectator.' " 11 The role of "interested spectator," however, was one with which Brandeis had little experience and, as it turned out, little patience. He chafed at being kept out of the fight. After nearly six weeks of reading the accusations of his enemies in the newspapers, he ex­ ploded: It looks to me as if the Committee were beginning either to perpetrate an outrage or to make themselves and me ridiculous by these contin­ ued hearings. 7. Letter from Amos R.E. Pinchot to L.D.B. (June 6, 1916), reprinted in IV LETTERS, supra note 1, at 239 n.l. 8. Letter to Rudolph Spreckels (Feb. 10, 1916), reprinted in IV LETTERS, supra note 1, at 42. 9. A. MAsoN, supra note 2, at 465. For an account of the confirmation hearings see A. TODD, JUSTICE ON TRIAL: THE CASE OF LOUIS D. BRANDEIS (1964). 10. Letter to l:Ienry B. Brougham (Feb. 8, 1916), reprinted in IV LETTERS, supra note I, al 35. 11. Letter to Alfred Brandeis (Feb. 12, 1916), reprinted in IV LETTERS, supra note I, at 54. August 1980] Brandeis and Frankfurter 1255 . I have accepted the opinion that it would be unwise for me to go down to Washington and appear, but if the proceedings continue on the lines which have been taken, making it appear that we are defend­ ing ourselves or excusing our conduct, I think I would rather go down and testify.
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